Attorney General: Tobacco trust funds off limits to lawmakers

By TIM TALLEY

Associated Press Writer

OKLAHOMA CITY (AP) -- The state Legislature has no constitutional authority to spend earnings from the Oklahoma Tobacco Settlement Endowment Trust Fund or to tell the fund's board how to spend the money,

according to an opinion by Attorney General Drew Edmondson's office.

The opinion, rendered by Edmondson's    officeon                                                                          Thursday, says a constitutional amendment approved by voters in November 2000 that created the trust fund gives the fund's board of        directors sole power to

spend fund money and that legislation to give that power to lawmakers would be inconsistent with the state Constitution.

"Under the unambiguous terms of the Constitution, it is the responsibility of the board of directors rather than the Legislature to determine the expenditures to be made from the trust fund earnings," the opinion states.

The endowment was established after the 1998 tobacco settlement agreement in which big tobacco companies agreed to return money to states to help pay health expenses associated with smoking.

Earnings from the endowment are dedicated to tobacco use prevention and cessation programs, said Tracey Strader, executive director of the endowment trust.

"All of the earnings are directed toward reducing our state's leading preventable cause of death," Strader said.

The legislation, known as the All Kids Act, was eventually passed without the trust fund language, Strader said.

A total of 415,000 children had been enrolled in the program and the change would provide coverage for as many as 42,000 additional children, according to projections from the governor's office.

Editorial: All-day kindergarten costs money; legislature must figure out whose

Sunday, September 23, 2007

When Ohio Attorney General Marc Dann issued an opinion that it was

illegal for school districts to charge parents extra for all-day kindergarten, he raised more questions than he answered.

Would some schools have to tell their kindergartners to roll up their nap-time blankets and head home for half the day?

Did the legislature - which has long ignored the practice of charging parents for extended kindergarten - mean to give the policy a pass?

It's hard to fault Dann for this confusion. He didn't go looking for trouble. He was answering a question put to him by the Ohio Department of Education.

And he found the answer in an Ohio law that states quite bluntly that public education in Ohio is free - from the 12th grade right down to kindergarten.

It doesn't say a word about all-day kindergarten.

His opinion leaves school districts in a quandary. Dann told them they should give refunds to parents, which would cut into this year's budget.

They don't have many good options.

Only poor schools get subsidies for full -day kindergarten. The rest can retreat to half-day kindergarten, which is mandated and subsidized by the state. But that idea doesn't sit well with the most ambitious districts. Educators know the benefits of early childhood education. And let's not forget about the pressure of academic testing.

The Ohio Department of Education is lobbying for a plan that could resolve this impasse. It wants legislators to change the law so districts that are ineligible for state subsidies for all-day kindergarten can charge tuition on a sliding income scale.

It's a reasonable compromise, and it could allow some districts to keep the classes going for now. In the future, it could even open the door for more youngsters to go to full-day kindergarten.

Attorney General Opinion Rules Parole Board Cannot Commute Parole-

Ineligible Sentences To Parole Eligible

(Media-Newswire.com) - Attorney General Richard Blumenthal today issued a formal legal opinion finding that the state Board of Pardons and Paroles cannot commute sentences of felons convicted of murder, rape and similar offenses to make them eligible for parole.

Board of Pardons and Paroles Chairman Robert Farr asked Blumenthal in April for the opinion after 13 convicted murderers petitioned to have their sentences commuted to make them parole eligible. In his letter seeking the opinion, Farr said that "it would be beneficial to commute certain applicant's sentences to parole eligible" so they are subject to state supervision upon release.

"No parole means no parole," Blumenthal said. "The board's powers to commute cannot be misapplied to enable parole for offenses prohibited from parole. They cannot convert any portion of a parole-ineligible sentence to make it parole eligible. Granting parole to felons convicted of serious offenses such as murder or rape would mock the letter and spirit of the law."

Under state law, Blumenthal said anyone convicted of murder, capital murder, felony murder, first degree rape and aggravated sexual assault is ineligible for parole. Blumenthal said that the state law bars the Board of Pardons and Paroles from commuting the parole- ineligible portion of a convict's sentence so that it can consider him or her for parole.

"The General Assembly has determined that the public's interest and safety are best served by making anyone convicted of murder or other crimes specified in

54-125a( b )( 1 ) ineligible for parole," Blumenthal wrote in the opinion. "That statute explicitly and particularly denies parole to those convicted of offenses enumerated in the statute and is a specific limitation on the general pardon and commutation powers granted to the Board of Pardons and Paroles.

"Accordingly, we conclude that a pardons panel of the Board of Pardons and Paroles does not have the legal authority to commute a sentence which is categorized as ineligible for parole so as to enable a person convicted of such offense to be eligible for parole."

(c) Media-Newswire.com - All Rights Reserved

Attorney General: Gay couples can adopt children in Tennessee

NASHVILLE (AP) -- Tennessee Attorney General Bob Cooper says there are no constitutional obstacles to gay couples adopting children.

The opinion released Wednesday was requested by Wilson County Circuit Judge Clara Byrd.

In it, Cooper wrote that, under the state constitution, same-sex couples should be eligible to adopt children as long as the court finds the placement to be in the child's best interest.

Cooper found the constitution doesn't mention adoption, meaning the process is governed solely by statutes.

Tennessee law doesn't require people petitioning for adoption to be married. Court records for adoption and juvenile cases are generally sealed from the public and details of the case prompting the opinion weren't immediately available.

LIV: Phil Power: Cox's anti-immigrant move falls flat (2/21/08)

Two days after Christmas, while Lansing was silent and largely deserted for the holiday season, Michigan Attorney General Mike Cox issued an opinion indicating that only permanent Michigan residents may get a driver's license. It appeared to say that people living here legally but on a temporary basis couldn't get one.

That opinion came in response to a request by state Rep. Rick Jones, R- Grand

Ledge. It was clearly not produced overnight. The opinion was five single- spaced pages in length and was accompanied by 13 footnotes and case citations.

Nobody I talked with in preparing this column - and I talked with plenty of people - knew Cox's opinion was coming.

But it was a bombshell.

It provoked a round of furious finger-pointing with Secretary of State Terri Lynn Land, Cox's fellow Republican. Her office was responsible for implementing Cox's complex ruling. It enraged the business community, which employs nearly

400,000 aliens legally in Michigan on valid visas.

It infuriated state universities when they suddenly discovered that thousands of their students and faculty members living legally in Michigan could not get a driver's license.

It wounded economic developers across the state who found themselves trying to explain that Michigan really didn't want to slam the door against international business expansion. And it provoked official protests from the governments of Japan and India.

All this from one little opinion by a state attorney general!

Of course, there was a political dimension to all this. (Surprise, surprise.) The subject of illegal aliens has been one of consuming interest during the presidential campaign, especially to many Republicans who want the border with Mexico closed and all illegals chucked out. (That is, unless they employ any on the sly.)

The issue has more than just Republic-ans squirming: Sen. Hillary Clinton, D-N.Y., got herself into trouble during the presidential debates with a series of confusing and contradictory responses when asked whether illegal aliens should get driver's licenses.

Most Lansing sources I talked with figure that Cox was doing little more than

pandering to the anti-immigrant wing of the GOP. I tried to ask Cox's PR guy about this, but my call was not returned.

In any event, once people returned to Lansing and the national press started saying that Michigan was now the toughest state in the country for aliens to get drivers' licenses, all hell broke loose.

Jim Epolito, CEO of the Michigan Economic Development Corp., was politely furious. He fired off a letter to Cox noting that his troops "have been receiving frantic telephone calls, e-mails and letters from Michigan's international business community regarding this issue. Your

opinion, issued with no advanced warning to the business community and with no opportunity for a hearing or public comment, has given the international business community the perception that Michigan is not open for business."

Epolito cited more than 375,000 employees who were in Michigan on perfectly legal visas, who could not effectively conduct their business without being able to drive a car.

Birgit Klohs, the highly effective economic developer for Grand Rapids, told me she'd been on the phone at all hours, trying to explain what was going on to angry foreign companies considering - at least, they had been - Michigan as a possible place for expansion.

Universities were just as dismayed. University of Michigan President Mary Sue Coleman pointed out that our universities are on the front line of bringing capable people to Michigan. I got a call from Linda Lim, the head of U-M's Southeast Asia Center, saying that she had an office full of students in tears.

Meanwhile, once the secretary of state's personnel started figuring out what the opinion really meant, they ran into all kinds of trouble trying

to work their way through the complex opinion. Lawyers quickly pointed out that Cox's language appeared to mean that even U.S. citizens living in Michigan temporarily could not obtain a driver's license.

Implementing rules were issued on Jan. 22, and were promptly attacked by a suit from the American Civil Liberties Union.

Cox's office complained that the secretary of state "misread" the opinion, which is the legal equivalent of "I wrote it, but it's your problem to figure out what I meant."

Fingers were pointed back and forth all over Lansing, with feelings (mostly anger) running especially high between the attorney general's office and that of the secretary of state, both Republicans.

Meanwhile, Gov. Jennifer Granholm urged the Legislature to find a fix to overturn the Cox opinion. Acting with unusual speed and bipartisanship, both the House and Senate overwhelmingly passed legislation that allowed foreign citizens living temporarily in Michigan to obtain a driver's license. The governor promptly signed the bill last Friday.

But the damage has been done. With his state facing terrible economic times and desperate for skilled immigrant workers and students, Cox's opinion succeeded in holding our foot up to be shot with our own pistol.

What's sad, embarrassing and all too predictable about this particular

episode of pandering-gone-wrong is that it was totally and completely unnecessary.

Attorney general: Use of funds from lottery unconstitutional

How Can Gaithersburg Prevent Day Laborers From Gathering?

March 6, 2008 - 8:51am

GAITHERSBURG, Md. (AP) - Gaithersburg officials say they are looking for new ways to prevent day laborers from looking for work by gathering near public roads.

Last week, Maryland Attorney General Douglas Gansler rejected an anti- solicitation ordinance passed by the City Council that would have made looking for work or workers along city streets a misdemeanor.

Gansler said the rule violated the First Amendment and Maryland's vehicle laws. City officials say the measure was intended to protect both workers' and drivers' safety.

That is leading residents to pursue other options. Assistant city manager Fred Felton says some property owners have given police permission to ban people from their land, which can be enforced through citation or arrest.

Information from: The Washington Examiner

(Copyright 2008 by The Associated Press. All Rights Reserved.)

Attorney General won’t say whether governor not living in Governor’s Mansion violates law

By David McGrath Schwartz · April 30, 2008 · 4:09 PM

The fact that marital problems are keeping Gov. Jim Gibbons from living in the Governor’s Mansion in Carson City has caused some consternation.

Nevada law says the governor must “keep his office and reside at the seat of government.”

So is Gibbons breaking the law by living in Reno while First Lady Dawn Gibbons lives in the Governor’s Mansion?

Attorney General Catherine Cortez Masto will not say.

In a written response to the Sun, the Attorney General’s office said it has not interpreted the state law and whether the governor’s current residential situation might violate it.

“While we appreciate your request for a legal interpretation of this provision, we do not provide legal analysis for the press. This office also does not discuss our interactions with our clients,” said the statement from Cortez Masto spokeswoman Nicole Moon.

The Attorney General’s client, in this case, would be Gibbons.

Moon noted that the Attorney General’s office is prohibited by state law from making legal interpretations requested by members of the public.

So it seems that Gibbons would have to ask the Attorney General whether he is breaking the law a highly unlikely scenario.

Attorney general: No funds for vouchers Weiers can't grant excess House money for education, office says

Amanda J. Crawford - Jul. 17, 2008 12:00 AM The Arizona Republic

The speaker of the state House of Representatives can't use excess House funds to pay for two private-school voucher programs axed in the state budget, according to an opinion released Wednesday by the Attorney General's Office.

House Speaker Jim Weiers announced last week a plan to use $ 5 million of about $9 million in a House contingency fund to pay for the programs, which provided scholarships to hundreds of disabled and foster- care children to attend private schools. The programs, which were declared unconstitutional by the Arizona Court of Appeals, were not funded in the new state budget that began July 1.

"I am very disheartened and very upset," Weiers said of the opinion, written by the state solicitor general. "It seemed like a perfect solution for a god-awful situation."

Weiers said he planned to meet with state schools Superintendent Tom Horne next week to see if there are other ways to save the programs.

Last week, Weiers and Horne entered into an interagency agreement to fund the programs with the House monies. They then requested that Attorney General Terry Goddard approve the move, which Horne said he needed before going forward.

In the informal opinion, Solicitor General Mary O'Grady said Weiers does not have the authority to give money to the programs. Under the state

Constitution, public money must be appropriated by the House, Senate and the governor.

"I know this is an emotional and personal issue for the families who have received these scholarships in the past, and I appreciate their frustration," Goddard said in a statement. "But the law is clear. The Speaker of the House of

Representatives has no power to spend funds for these scholarships, or for any other purpose, without going through the appropriations process."

Tennessee AG says photo ID bill likely unconstitutional

By Andy Sher

Wednesday, April 13, 2011

NASHVILLE — In a just-released legal opinion, Tennessee Attorney General

Bob Cooper says courts would “likely” rule as unconstitutional a proposed law that requires voters to present qualified photo identification before casting their ballots.

The problem, Cooper says in his seven-page opinion, is the bill makes no provision for free government photo IDs, such as a driver’s license. Courts would probably interpret that as a “poll tax” that “unduly burdens” those who cannot afford such ID, Cooper wrote.

Cooper said it would probably violated the U.S. Constitution’s 24th

Amendment with respect to federal elections and the Equal Protection Clause with regard to state and local elections.

In addition, he said, a state court would find it also violates the Tennessee Constitution because of a provision that confers protections similar to the Equal Protection Clause.

House and Senate Democratic leaders sought the opinion on the Republican- backed bill which passed the GOPHouse. The Senate is controlled by Democrats.

McKenna: Don't ask me about medical pot

By CHRIS GRYGIEL, SEATTLEPI.COM STAFF

Updated 02:49 p.m., Monday, May 9, 2011

At the request of state lawmakers, Attorney General Rob McKenna's office on

Monday released his office's informal opinion about the legal implications of proposed medical marijuana legislation now being considered in Olympia.

Citing various factors, McKenna essentially declined to answer the lawmakers' questions, which centered around how the federal government might react to changes in the state's medical cannabis law.

"...your letter asks for our views with respect to how a federal law...would be interpreted, administered and enforced by the federal government. As you likely appreciate, this Office neither controls nor influences such decisions," wrote Jeffrey T. Even, deputy solicitor general.

More than a dozen state lawmakers sent McKenna a letter last week. That's because Gov. Chris Gregoire has vetoed the most critical parts of a medical cannabis bill, Senate Bill 5073, reiterating her concerns that state workers could be prosecuted under federal law the way the measure

was written.

The legislation was passed to set clearer regulations on medical marijuana use and to establish a licensing system and patient registry to protect qualifying patients, doctors and providers from criminal liability. Gregoire vetoed provisions of the bill that would have licensed and regulated medical marijuana dispensaries and producers. She also vetoed a provision for a patient registry under the Department of Health, but said she would support legislation creating a registry as long as state workers weren't put at risk.

The lawmakers said in their letter to McKenna that the veto has left the medical marijuana program into crisis. They wanted to know the likelihood that federal prosecutors would target state employees for regulating the industry.Some legal experts say Gregoire's worry that Uncle Sam would come after state workers is unfounded.

Last week Gregoire signed off on an idea to revive a medical marijuana bill she largely vetoed last week. She supports the idea of "non-profit patient cooperatives. Local governments would have the ability to license and zone the pot shops. Legislation outlining the new proposals is expected to be introduced in Olympia this week.

Published May 16, 2011, 03:56 PM

AG declines request for formal opinion on Sioux nickname

By: Chuck Haga, Grand Forks Herald

Attorney General Wayne Stenehjem has declined — for now — a request from 10 state lawmakers that he issue a formal opinion on the constitutionality of the Sioux nickname law adopted by the Legislature in March.

In a letter to Rep. Lonny Winrich, D-Grand Forks, Stenehjem said that because the State Board of Higher Education is weighing legal action against the law, a formal opinion from his office now would be premature.

“It is my understanding that the president of the State Board of Higher

Education recently asked board members to consider, for the board’s next meeting, whether litigation is appropriate,” Stenehjem wrote in a letter dated

Thursday. “As a result, it is reasonably foreseeable that I will be asked to consult with the board regarding its legal options, either at the board’s next meeting or a subsequent meeting.

“Since it has been the longstanding policy of this office not to issue an opinion on a matter when litigation is pending or likely,” he said, “I must respectfully decline to address your questions at this time.”

Stenehjem sent copies of his response to the nine other lawmakers who had signed Winrich’s request, including two other Grand Forks Democrats: Rep. Eliot Glassheim and Sen. Connie Triplett.

One Republican, Fargo Rep. Kathy Hawken, was among the signers of

Winrich’s letter. The nickname law, signed March 15 by Gov. Jack

Dalrymple, requires UND to retain its Fighting Sioux nickname and logo despite a legal agreement between the university and the

NCAA, which has threatened sanctions if the Indian imagery isn’t dropped. The 2007 agreement had given UND three years to obtain the blessing of two namesake tribes or discontinue use of the name.

The school, under direction of the state board, had been about a year into a transition process that was to end with the nickname’s retirement by Aug. 15. After the law was adopted, the board told UND to halt the transition.

Board President Jon Backes asked members at a board meeting May 9 to think about ways to resolve the situation, which leaves UND facing a renewed threat of sanctions if it complies with the state law.

Backes has asked attorneys in the North Dakota University System to review whether the law infringes on the board’s constitutional authority to manage

UND and the other institutions under its control, and he said last week that he also would like to hear from Stenehjem.

“I certainly don’t think there would be any action taken by the board” at that session, Shaft said, and he doubts any legal action would be taken before the new law takes effect. But board members “don’t want efforts (to resolve the situation) to languish over the summer,” he said. Winrich said it’s important to resolve questions about the nickname’s status quickly.

“I believe the bill we passed is unconstitutional,” the retired UND computer science professor said.

In addition to undercutting the state board’s authority, “there’s also a constitutional issue because the legislation tries to overturn a court decision,” the 2007 legal settlement agreed to by UND and the NCAA, he said.

Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or

send e-mail to chaga@gfherald.com.

Last updated: February 23, 2012 11:01 a.m. Attorney general backs Lugar on residency

Brian Francisco Washington editor

The Indiana attorney general's office has issued an opinion supporting the assertion of Sen. Richard Lugar, R-Ind., that he is an Indiana resident despite not owning or renting a home in the state.

Matthew Light, chief counsel to Attorney General Greg Zoeller, issued an advisory letter dated Wednesday agreeing with a 1982 opinion by then- Attorney General Linley Pearson.

"The analysis and conclusions in the 1982 advisory letter remain valid. Members of Congress do not lose their residency for voting purposes when they leave the state so that they may fulfill their duties," Light wrote in the letter released Thursday by Lugar's re-election campaign.

"You have served continuously in the U.S. Senate as an Indiana Senator since

1977. To the extent you have been absent from the state since that time, the absence has been directly related to the business of the state of Indiana and the United States. Therefore the residence you established in Indiana is not lost by reason of that absence," Light wrote, citing state law and legal cases.

For voting purposes, Lugar has used the address of an Indianapolis house he sold in 1977, his first year in the Senate. He has lived since then in McLean, Va.

The Indiana Election Commission on Friday will hear complaints filed about Lugar's residency status.

The Indiana Democratic Party, tea party activists and Lugar's foe in the

May 8 Republican primary election, state Treasurer Richard Mourdock, have taken Lugar to task for not maintaining a residence in Indiana. Lugar has said he stays at hotels when visiting the state.

Attorney General declines to issue legal opinion on Price Lab

By JON ERICSON, Posted: Wednesday, March 28, Price Laboratory School

DES MOINES --- The Iowa Attorney General will not issue a ruling regarding the decision to close Malcolm Price Lab School because of concerns about interfering with pending litigation.

A lawsuit filed Tuesday by a group of parents, educators and residents seeks to overturn the Feb. 27 decision by the Iowa Board of Regents to close the school on the University of Northern Iowa campus. In early March, a number of legislators asked the Attorney General’s office for an opinion on whether the board had the authority to close the school.

On Wednesday the attorney general’s office declined to issue the decision, citing a section of Iowa code that states the office may do so if “the matter is pending in litigation or litigation is imminent, or other formal proceeding provided by law for resolution of the issue and issuance of the opinion could interfere with the authority of the other forum.”

Deputy Attorney General Julie Pottorff indicated it was normal for the office to decline to issue opinions when a court case is pending and it could interfere with the office’s ability to defend state officials.

“Generally, we do not issue opinions when to do so would interfere with the authority of the courts,” Pottorff wrote. The lawsuit includes 37 plaintiffs.

Under UNI President Ben Allen’s recommendation to the Board of

Regents, the school would close after June 30. Posted at 06:00 AM ET, 05/31/2012, Wa Post, Virginia Politics Blog By Laura Vozzella

Virginia Attorney General Ken Cuccinelli II has issued a legal opinion indicating that a new tuition tax credit, which critics say amounts to school vouchers, is constitutional.

Virginia Attorney General Ken Cuccinelli II speaks during a news conference in

2010. (AP Photo/Richmond Times-Dispatch, Bob Brown)Cuccinelli (R) provided the opinion at the request of Del. Scott A. Surovell (D-Fairfax), who questions the legality of the credit created by the General Assembly this year.

The Virginia Constitution prohibits the General Assembly from appropriating funds to any non-public schools, private charities or churches. Surovell asked Cuccinelli if such a credit would run afoul of those prohibitions. He made the request in December, anticipating that the issue, which Republicans had pushed without success in previous sessions, would resurface in 2012.

Responding with a formal advisory opinion Friday, Cuccinelli said that while the General Assembly is prohibited from appropriating money for private- or parochial-school tuition, it may provide tax credits for that purpose.

His opinion did not directly address the law passed this year, which offers tax credits to businesses and individuals donating private- and parochial-school tuition to poor, middle-class and disabled students.

Republicans contend the tax credit will open doors for students, while Democrats say it will undermine public education.

Attorney General's office won't issue opinion on constitutionalityof state budget

By Jeff Adelson, NOLA.com | The Times-Picayune, December 05,2012

Attorney General Buddy Caldwell released a letter Wednesday saying he will not issue an opinion on whether the current state budget is constitutional, despite a request by state lawmakers. In explaining his decision, Caldwell noted that his office is charged with defending state laws and raised concerns about the possibility that the budget might soon be challenged in court.

"It must be noted that while your opinion request raises issues regarding the legality of the state budget, all laws passed by the legislature are presumed constitutional and it is the role of the Attorney General to defend the constitutionality of such laws," Caldwell wrote. "Accordingly, our office is not currently in a position to render an opinion on the questions presented."

Last month, 19 lawmakers asked Caldwell to issue an opinion on the constitutionality of the 2012-13 budget., passed during the Spring legislative session and enacted in July. That request, written by Rep. Kirk Talbot, argued that the budget violated the state constitution by engaging in deficit spending, relying on uncertain future events for revenue and using one-time money for recurring expenses.

….

In addition to citing the potential conflict between his office's role in defending state laws and issuing a non-binding opinion on the constitutionality of the state budget, Caldwell also noted that his office does not typically offer opinions when "the relevant facts are in dispute or the where the prospect of litigation appears imminent."

"It appears from your request that this is a matter that is or will be presented to the courts for determination and therefore not at this time an issue to be addressed in an Attorney General Opinion," Caldwell wrote.

Cities cannot mandate smoke-free parks, Oklahoma attorney general opinion rules

Because of restrictions in Oklahoma's state law, cities cannot pass ordinances banning smoking in public parks, according to an Oklahoma attorney general opinion released last week.

By Jaclyn Cosgrove | Published: February 12, 2013

Drive to a local city park in Oklahoma, and you might see a sign letting you know you're banned from smoking in that park.

These signs are apparently irrelevant, as are the ordinances they help enforce.

An Oklahoma attorney general opinion released Feb. 5 ruled that cities cannot ban smoking in outdoor areas that they own or operate.

The ruling was based on the fact that Oklahoma's state law bans cities from passing smoking laws that are stricter than state law.

Tennessee attorney general says prohibiting U.N. election observers is 'constitutionally suspect'

By Hank Hayes – March 25, 2013 – Associated Press

Tennessee legislation prohibiting United Nations’ representatives from observing elections in the state is “constitutionally suspect,” according to a state attorney general’s opinion.

The legislation, sponsored by state Rep. James “Micah” Van Huss, calls for

U.N. representatives to face a misdemeanor offense if caught watching elections at state polling locations.

But the attorney general’s office said that because of the Supremacy

Clause in the U.S. Constitution, U.N. officials would be immune from prosecution under federal law.

“The federal government as part of its foreign affairs policy has decided to participate in the United Nations and has chosen to participate in reciprocal international programs regarding the observation of elections in participating countries by representatives of other participating countries,” the attorney general’s opinion said. “The Supremacy Clause precludes a state from interfering with the United States government’s exercise of its foreign affairs policy under federal law.”

Van Huss, R-Jonesborough, said in a past e-mail he authored the bill “out of a desire to reinforce our eroding national sovereignty.”

He cited a news story noting the U.N. and the Organization for Security and Cooperation in Europe (OSCE) sent a 44-member multinational delegation to the United States to monitor and observe America’s election process for human rights violations.

The attorney general’s office pointed out the United States is an OSCE member committed since 1990 to hold “free and democratic elections” and to allow member nations to observe each other’s elections.

“The OSCE’s policy is to comply with national, state and local laws when conducting its election observations,” the attorney general’s opinion explained.

Attorney General: Bryant can't run Medicaid by executive order Jun. 19, 2013

Written by Associated Press

Mississippi's governor does not have the legal authority to operate the Division of Medicaid by executive order, Attorney General Jim Hood said in a nonbinding legal opinion issued Wednesday.

The opinion from Hood, a Democrat, contradicts Republican Gov. Phil Bryant. The governor has said for weeks that he thinks he can run the program himself, even if lawmakers don't vote to keep it alive beyond June 30, the end of the current budget year.

Some lawmakers say the attorney general's opinion could increase pressure on Bryant to call the Legislature into special session by next week to reauthorize Medicaid, which covers 644,000 low-income, needy or disabled Mississippians.

But Bryant spokesman Mick Bullock had only a short response to what Hood wrote: "That's all it is, his opinion."

Hood issued his seven-page opinion in response to questions from Democratic Rep. Cecil Brown of Jackson, who has been working with other House

Democratic leaders on Medicaid issues. Attorney general's opinions are not legally binding but provide guidance for state leaders.

During their three-month session that ended in April, lawmakers locked up in a partisan dispute over whether to expand Medicaid, as allowed under the federal health law signed by President Barack Obama. Bryant and Republicans who control the House and Senate said the state can't afford to add people to an entitlement program, while Democrats said expansion would boost the economy and help 300,000 currently uninsured people. In the past few weeks, Democrats have proposed a twist on Medicaid expansion — allowing low-income people to use federal subsidies to buy health insurance through a government-sponsored exchange, or online marketplace.

Because of the dispute over Medicaid expansion, lawmakers did not reauthorize the existing Medicaid program or set its budget for the fiscal year that begins July 1.

Medicaid is one of several state programs that come up for legislative review and reauthorization every few years.

In the document Wednesday, Hood relied largely on a legal opinion his office

issued in 2009 during another dispute over the reauthorization of Medicaid. He

said that in the past four years, there have been no changes to state laws or rulings from the state Supreme Court that would take away the Legislature's responsibility for keeping Medicaid alive.

Arkansas Attorney General: Schools Can't Arm Teachers, Staff

by Andrew DeMillo, The Associated Press on Thursday, Aug. 1, 2013 3:45 pm

LITTLE ROCK - Arkansas' attorney general says school districts can't use

a state law to employ teachers and staff as licensed, armed security guards on campus.

Attorney General Dustin McDaniel on Thursday said in an opinion issued by his office that the Arkansas board of Private Investigators and Private Security Agencies doesn't have the authority to license school districts to employ teachers and staff as armed guards.

The opinion was requested after the Clarksville School District began training more than 20 teachers and staff to work as volunteer security guards who would carry concealed weapons on campus. The superintendent of the district said the opinion likely meant the schools couldn't continue with that program.

A state lawmaker requested the opinion the day after The Associated Press reported about Clarksville's program.

(Copyright 2013 The Associated Press. All rights reserved. This material may not be published, rewritten, broadcast or distributed.)

State AG: Public health districts must offer birth control, abortion, Wednesday, August 21, 2013 by: Joel Connelly

Any public health district in Washington that provides maternity care must continue to offer “substantially equivalent benefits” in the form of contraception and abortion services, even if it contracts with a religious- affiliated medical organization, state Attorney General Bob Ferguson said in an opinion Wednesday.

“I fully expect all public hospital districts to comply with this opinion,” Ferguson told a Seattle news conference.

Attorney General Bob Ferguson: Public health districts must provide contraceptive and abortion services, if they deliver babies.

The opinion impacts a growing trend in Washington, in which small local hospitals have chosen to affiliate with larger health organizations, including Catholic-affiliated PeaceHealth and Providence Health and Services.

Under a directive by the U.S. Conference of Catholic Bishops, church-affiliated hospitals cannot perform abortions, are restricted in contraceptive services and cannot assist in patient suicides.

State Sen. Kevin Ranker, D-Orcas, asked the AG if a public hospital district would violate the state’s Initiative 120 if it solely contracts with a health care provider — such as a Catholic-affiliated hospital — that does not provide reproductive care services such as contraception and abortion.

Under the terms of I-120, adopted by voters in 1991, a public hospital district

“may not provide maternity care without abortion and birth control . . . There are more than 50 public hospitals in Washington and this affects all of them,”

Ferguson said. The initiative did not impose the requirement on private hospitals.

I-120 is one of the nation’s most sweeping abortion rights laws. It was voted into law 21 years after the 1970 election in which Washington voted to make abortion legal.

It declares that Washington residents have a “fundamental right to choose or refuse” contraception or abortion, and prohibits the state from discriminating against the exercise of these rights in the “regulation or provision of benefits, facilities, services or information.”

It also requires that, if the state (including public hospital districts) provides maternity care services or information, it must furnish

“substantially equivalent benefits, services or information” regarding abortion and birth control.

The attorney general was not asked by Ranker to explain exactly how public hospital districts must comply with this requirement or what exactly constitutes “substantially equivalent benefits.”

Attorney general: Governor overstepped authority in stopping capital projects Martinez blocked $13.5 million in funding for construction work statewide By Milan Simonich Texas-New Mexico Newspapers

SANTA FE — State Attorney General Gary King issued an opinion Nov. 22 saying the governor overstepped her authority when she suspended funding for 122 capital improvement projects across the state.

"The governor is not permitted under current law and the separation of powers mandated by the New Mexico Constitution to unilaterally withhold capital outlay funds properly appropriated by the Legislature," King said.

Twelve Democratic state senators last May asked the attorney general to review Republican Gov. Susana Martinez's order that blocked $13.5 million in funding for projects statewide.

Martinez said local governments were behind on audits or there were findings questioning public expenditures.

Her executive order established completed audits as a basic but critical financial standard. "Millions of dollars are spent each year on capital projects in communities throughout our state," she said at the time. "It's important for the entities spending this money to show on a regular basis that they meet financial management standards."

State Sen. Howie Morales, D-Silver City, said the administration's contention that all local governments were behind on audits was incorrect.

Morales said he made sure that governments in his district had up-to-date audits before submitting any capital construction projects on their behalf. He said he was concerned that construction jobs and community improvements were being stalled unnecessarily.

….

King said New Mexico courts have held that a violation of separation of powers occurs when a governor's actions "disrupt the proper balance" between the legislative and executive branches. King said Martinez did just that in this instance.

Milan Simonich, Santa Fe Bureau chief of Texas-New Mexico Newspapers, can be reached at 505-820-6898. His blog is at nmcapitolreport.com.

Kansas AG: Guns OK in some polling places

December 4, 2013 – Witchita Eagle

Attorney General Derek Schmidt is advising state election officials that guns will have to be allowed in some polling places, but can be banned from others.

In an opinion issued Wednesday, Schmidt told Secretary of State Kris Kobach that election officers will have to allow concealed carry at polling places in municipal buildings under the terms of a state law that passed earlier this year.

However, public schools, churches and other privately owned buildings used as polling sites will be able to ban guns on Election Day if they prohibit firearms the rest of the year, the opinion said.

The attorney general’s opinion is not binding, but can be relied on for guidance on legal issues until and unless the matter is decided by a court.

The issue arose after the Legislature passed, and Gov. Sam Brownback signed, the Personal and Family and Protection Act, a law expanding the right of concealed-weapon-permit holders to carry guns in government buildings.

The law’s main provision allows concealed carry in most city and county buildings unless the agency secures the building with metal detectors and guards. Key exceptions are K-12 schools, courtrooms and secure areas of jails, prisons, juvenile corrections facilities and police stations.

The question before Schmidt was whether the county’s use of other people’s buildings for elections constituted a lease of the property, which would trigger the gun law’s requirements.

Schmidt ruled that when a private entity allows the state to use its building for a polling place, that’s a license, not a lease.

The only exception would be if a county rented an entire building for a polling place. “However, we do not imagine this circumstance occurring often if at all,” he wrote in the opinion.

Schools are in a separate class because they are not considered “municipal” buildings under the law, he wrote.

More than three-fourths of Sedgwick County’s polling places are in churches, parochial schools or other private facilities. Some ministers said they would have to reconsider hosting elections if it meant they had to allow guns in their buildings.

Sedgwick County Election Commissioner Tabitha Lehman said Schmidt’s opinion “won’t really change or affect our ability to keep the polling places we have.”

However, she said it will mean extra work for her staff because they will have to contact the owners of each private-sector polling place and advance-voting site to determine whether they allow firearms. She said her staff will compile a list of those that don’t so permit holders can call in and find out whether they can carry when they go to vote.

Twenty-three percent of the county’s polling sites are in municipal buildings where guns will be allowed, including Lehman’s own office in the Historic Courthouse downtown.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

Attorney General: Funds Transfer Unconstitutional By ASSOCIATED PRESS, November 21, 2014

OKLAHOMA CITY (AP) — Oklahoma's attorney general says a bill approved by the Legislature this year to fund state government violated the Oklahoma Constitution by transferring $5 million out of a trauma care fund.

In a formal opinion released Tuesday, Attorney General Scott Pruitt said the transfer of money violated Article 10, Section 19 of the state Constitution, which prohibits using taxes levied for one purpose to be used for another purpose.

The Trauma Care Assistance Revolving Fund is used to help reimburse doctors, hospitals and ambulance services for uncompensated care. The Legislature transferred $5 million from the fund for general spending.

Pruitt issued a separate opinion that a similar transfer of about $5.5 million from a workers' compensation fund also violates the Oklahoma Constitution.

Attorney general withdraws opinion sought by prosecutors who oppose pot legalization proposal

THE ASSOCIATED PRESS

First Posted: May 15, 2015 - 4:09 pm

Last Updated: May 15, 2015 - 4:13 pm

The state Attorney General's Office is having second thoughts about its advisory opinion that said Arizona officials could use public resources to educate the public about ballot measures.

Attorney General Mark Brnovich's office on Thursday withdrew the May 4 opinion that was requested by two prosecutors who oppose a marijuana legalization proposal.

The prosecutors, Maricopa County Attorney Bill Montgomery and Yavapai County Attorney Sheila Polk, wanted guidance on what they could do in their official capacities now that supporters of the marijuana legalization proposal have formally launched a ballot initiative campaign to put the issue on the November 2016 ballot.

The opinion said officials could use public resources to educate the public about ballot measures, but it said officials cannot urge that people vote in a particular matter.

Critics of the opinion said public officials may view it as opening the door for them to influence voters and seek to change the outcome of elections, the Arizona Capitol Times (http://goo.gl/z1D3zW ) reported.

The opinion "makes it easier for government-funded propaganda to take place in Arizona," said Kory Langhofer, an election attorney.

Christina Sandefur, vice president for policy for the Goldwater Institute, said the opinion doesn't take into account laws enacted in 2013 that restrict the use of public resources to influence elections.

Attorney General's Office spokesman Ryan Anderson said the office takes the

criticism seriously. "We are internally reviewing this opinion to make sure that we protect the First Amendment rights of public officials while ensuring that we are protecting taxpayer dollars," Anderson said.

Christie doesn't have to disclose gifts from friends, N.J. Attorney General's Office says

May 20, 2015, 1:00 PM   Last updated: Wednesday, May 20, 2015, 2:46 PM

By MELISSA HAYES

state house bureau | The Record

AP

Governor Christie talks with Dallas Cowboys team owner Jerry Jones on the field as the teams warm up before an NFL football game against the Indianapolis Colts, Sunday, Dec. 21, 2014, in Arlington, Texas.

Governor Christie does not have to disclose gifts from friends – including Dallas Cowboys owner Jerry Jones – according to a written opinion from the state Attorney General’s Office.

Susan Guerrero, executive director of the State Ethics Commission, asked Acting Attorney General John Hoffman for clarification on the definition of

“gifts” and disclosure requirements under an executive order Christie signed in 2010.

Christie, who is exploring a presidential run, came under scrutiny earlier this year after he was seen on television hugging Jones in a luxury box at a Dallas

Cowboys playoff game in Texas. Jones paid for Christie and his family to fly to that game and provided them with tickets. The Cowboys owner also provided tickets to two other games.

Related: Group files ethics complaint over Christie's Cowboys trips

At the time Christie said he was able to accept the tickets – despite the state’s strict ethics regulations barring such gifts for most elected officials – because Jones is a “personal friend,” and there’s an exemption for gifts from friends.

Christie and his family also traveled to Jordan in 2012 as guests of King Abdullah, someone the governor has also described as a “good friend.”

Hoffman issued his opinion to Guerrero – only the second written opinion issued by the Attorney General’s Office during Christie’s tenure – on Thursday. Christie filed his annual financial disclosure form for the year on Friday.

Hoffman interpreted the governor’s executive order to define gifts at “items received in return for performing some service, such as speaking at an event.”

Related: Gov. Christie will pay his own way to Cowboys-Packers playoff game

Christie has never claimed any gifts on his personal financial disclosure form, but his staff keeps a record of all gifts given to him at public events or sent to his office.

His disclosure for 2015 is similar to past years.

Christie lists his salary as between $100,000 and $250,000 – he’s paid $175,000 as governor. His wife Mary Pat’s income is listed at greater than $500,000. Mary Pat Christie’s employer is listed as Angelo, Gordon Co., however she resigned as a managing director last month, saying she wanted to spend more time with the couple’s children. The governor also lists royalties of between $5,000 and

$25,000 from McNeil-PCC, Inc.

Attorney general can’t amend university firearm policy

Sara Falligant | Opelika-Auburn News | Posted: Thursday, July 30, 2015 9:08 pm

Alabama Attorney General Luther Strange has determined Auburn University’s firearms policy, which prohibits the possession and use of firearms on university property, that the state’s 2013 gun law widely viewed as a victory for gun owners cannot be enforced on university campuses.

The Attorney General released his decision this week following a June 4 formal petition from an individual citing firearms policies at both Auburn and the

University of South Alabama. While the Office of the Attorney General can’t reveal the source of the complaint, spokesperson Mike Lewis said the petition was filed by a college student “who likes to carry his guns with him” while visiting friends on campus.

Strange cites both universities’ status as a public corporation under the Code of Alabama, rather than a political subdivision covered by the gun law, which leaves universities out of the attorney general's jurisdiction. The letter also explains both universities confirm that they “promulgate and enforce” their firearms policies.

“You can’t really enforce a law against them, since they’re not a political subdivision,” Lewis explained, adding political subdivisions in the eyes of state law include counties, cities and public local entities, among other institutions.

“It apparently didn’t apply to them in the first place. It seems apparent that the legislature would have to change that if they want the gun law to apply.”

Though Lewis said the Office of the Attorney General has not received complaints regarding enforcement of the law at any other state universities,

Auburn University spokesperson Charles Martin said the university’s policies are consentient with those of other schools in the state.

“These are the only ones for which we have received formal complaints,” Lewis said. “We can’t make a blanket ruling, per se, as we choose.”

Martin said Auburn University has not received any additional formal complaints

regarding the policy, but officials have received “the occasional letter or email voicing opinions on the policy.”

In addition to the university complaints, Strange also addressed complaints regarding the gun policies of the Alabama Department of Transportation, the City of Moulton and the Laurence County Sheriff’s Office.

“The Second Amendment Rights of Alabamians must be protected and I am committed to doing so,” Strange said in a release. “In a number of cases, violations of Alabama’s gun laws have been corrected after my office’s review.

Most notably, ALDOT has agreed to remove signs from all state rest areas prohibiting firearms.”

Same-Sex Couples Can Commit Adultery Too, Attorney General Says

By Jessica Anderson and Colin Campbell The Baltimore Sun

With marriage equality comes divorce equality.

To clear up a murky area of state law, Maryland Attorney General Brian E. Frosh has written a legal opinion that says cheating by spouses in same-sex marriages can also be considered adultery.

The opinion might seem superfluous, but for those couples struggling in an unfaithful marriage, the opinion is important when it comes to filing for divorce. A spouse, including one from a same-sex couple, clearly can now file for divorce over adultery, which is one of several fault-based grounds for divorce under Maryland law.

Under "fault" grounds such as adultery, a husband or wife can obtain an absolute divorce without first having to live apart from a spouse for a year. Adultery can also become a factor in alimony and child custody matters.

"We're pleased by it. It's an example that equality means equality," said Jer Welter, the deputy director and managing attorney for FreeState Legal, a legal advocacy organization for low-income lesbian, gay, bisexual and transgender residents in the state.

Frosh's July opinion is "an affirmation that Maryland will equally recognize the dignity of marriages between same sex couples," which can equally be harmed by adultery, Welter said.

Frosh wrote that the opinion was issued not only for the purpose of clearing up murkiness in family law, but also out of "the respect and dignity owed to same- sex marriages as equal to opposite-sex marriages under State law."

Maryland Del. Luke Clippinger requested in February that the attorney general's office review the issue and how it applies to same-sex couples under state law. The Baltimore Democrat, who sponsored the 2012 legislation that legalized same-sex marriage, said the Family Law Section of the Maryland State Bar Association, Free State Legal and Equality Maryland had raised the issue.

"It goes back to an issue of fairness," Clippinger said in an interview Thursday. "We don't often like to talk about the bad sides of marriage, but having said that, the same rules should apply."

He said the opinion applies the responsibilities of marriage equally.

"It means we're all in the same place," he said. "The same responsibilities that every partner in every married couple has — to be true to each other — that applies to everyone. And it should apply to everyone fairly."

Frosh's spokesman did not return a message seeking comment Thursday.

Same-sex marriage has been legal in Maryland since 2013 after voters approved a referendum the year before. The U.S. Supreme Court ruled in June that all states must legally recognize marriage between same-sex couples.

In his opinion on the adultery issue, Frosh wrote that the state should "recognize that sexual infidelity is a breach of the marriage vow and causes damage to the marriage, such that the injured party should be allowed to dissolve the marriage more easily than would otherwise be the case."

It continued, "Extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex."

The Maryland Judiciary doesn't track same-sex marriage divorces, a spokeswoman said, but it tracks total divorce filings. In fiscal year 2012, there were 34,773 divorces in the state; in 2013, there were 33,291; and in 2014 there were 32,436, according the Judiciary's annual statistical report.

Adultery is one of several fault-based grounds for divorce in Maryland. Others include desertion, conviction of a serious crime and insanity. A couple without fault-based grounds must live apart for 12 consecutive months before a divorce is granted. But a new law that takes effect in October allows couples to bypass that requirement and dissolve a marriage by mutual consent if they have no minor children in common.

As a cause for divorce, adultery can be difficult to prove, said Lee Carpenter, an associate at Semmes, Bowen & Semmes, a Baltimore law firm.

"You need evidence of an inclination to engage in adultery and evidence of an opportunity to have done so," he said.

But Carpenter said simplifying the process for same-sex couples would be "helpful."

Carpenter, who prepares prenuptial agreements and handles LGBT estate planning, said divorces for adultery can prevent unfaithful ex-spouses from receiving possessions bequeathed to them in their exes' wills. Any changes to divorce law should be made carefully, he said.

"You don't want to make the law too broad," he said. "Is kissing adultery? Is oral sex adultery? It's a delicate thing to be talking about. This is one place where they need to use caution. It can vary from couple to couple."

Adultery has been recognized in Maryland law dating back to 1650, and it is still a misdemeanor but has not been enforced in some time, according to the attorney general's office. At one time, defendants charged with killing their spouse could argue that their cheating spouse drove them to commit murder, which provided grounds to reduce the charge to manslaughter, the office said.

In the past, some cases have shown a struggle in defining adultery — whether under the law it applied only to sexual intercourse between a married woman and a man who was not her husband. Eventually, all states had laws prohibiting adultery for both men and women, reflecting an evolving attitude toward gender equality.

But another issue raised is whether adultery "also encompasses other sexual acts — either between a man and a woman or between two persons of the same sex," the attorney general's office said.

Frosh's opinion points out that the plaintiff in a divorce case don't have to prove evidence of the sexual act, but merely that a spouse and paramour had the opportunity. There is no need to prove details about specific sexual acts.

The opinion said same-sex partners therefore should not have to meet a "higher burden by proving such details."

jkanderson@baltsun.com twitter.com/janders5 cmcampbell@baltsun.com twitter.com/cmcampbell6

Copyright © 2015, The Baltimore Sun

Va. Republican demands opinion on transgender issues from attorney general

Del. Dave Dave LaRock (Courtesy of Dave LaRock for Delegate) By Jenna Portnoy April 20 at 2:54 PM

RICHMOND — A conservative Republican lawmaker from northern Virginia is suing Attorney General Mark Herring (D) to try to force him to fulfill his request for an opinion related to the volatile issue of transgender rights.

Del. David A. LaRock (Loudoun) strongly criticized Herring on Wednesday for failing to provide legal guidance seven months after he was asked for clarity on how state law relates to individuals who identify with a sex that does not match their biological sex.

The call comes the day after a federal appeals court deferred to the U.S. Department of Education’s position that transgender students should have access to the bathrooms of the gender with which they identify.

Herring has built a national profile on left-leaning causes, from gay marriage and immigration to environmental policy and gun control. His office recently turned around a legal opinion on the death penalty in less than a week.

LaRock said Herring’s pattern of advocacy “infuriates” him.

“All this while he waltzes around the country making headlines and promoting things that have nothing to do with what the taxpayers of Virginia hired him do to,” he said at a news conference. “I’m just about fed up trying to get the attorney general to just do his job.”

Herring’s spokesman, Michael Kelly, said attorneys are researching LaRock’s request and a response will be provided “in due course.”

“Turnaround time on opinions depends on numerous factors and our first priority is always to provide strong, accurate legal advice,” Kelly said in a statement. “As evidenced by yesterday’s Fourth Circuit ruling, the law in this area is developing very rapidly in very significant ways.

LaRock was joined by eight Republican lawmakers in his call for an advisory opinion on the definition of the terms “sexual orientation” and “gender identity” as they relate to the state’s laws prohibiting sex discrimination.

9/1/2017                  Virginia attorney general issues opinion saying state law allows Confederate monument removal | Va Md Dc | fredericksburg.com

http://www.richmond.com/news/virginia/government-politics/virginia-attorney-general-issues-opinion-saying-state-law-allows-confederate/article_48d73268-5191-5a48- 9638-60e830ecd226.html

Virginia attorney general issues opinion saying state law allows Confederate monument removal

BY PATRICK WILSON Richmond Times-Dispatch Aug 25, 2017

Herring

DAVID CRIGGER / BRISTOL HERALD COURIER

Attorney General Mark R. Herring issued an advisory opinion Friday saying localities can remove or relocate a Confederate monument as long as there are no individual laws or restrictions governing those particular monuments.

The opinion does not change or create law, but is Herring's interpretation of existing law. It comes as localities across Virginia debate whether to relocate Confederate monuments following violence in Charlottesville Aug. 11 and Aug. 12 at a rally organized under the pretext of defending the Robert E. Lee monument there, which drew white supremacists and turned violent.

9/1/2017                  Virginia attorney general issues opinion saying state law allows Confederate monument removal | Va Md Dc | fredericksburg.com

Virginia is debating whether a 1998 statute restricting the movement of war memorials is retroactive or only affects war memorials constructed after 1998. Herring says the law is not retroactive:

"When the General Assembly omits a clear manifestation of intent that a statutory change should apply retroactively, it generally should be concluded that the legislature did not intend such an application."

Additionally, because the existing law was first passed in 1904, it doesn't even apply to any war memorial or monument constructed before then, according to Herring's opinion.

Herring issued his opinion in response to a request from Julie Langan, director of the Virginia Department of Historic Resources.

Norfolk City Attorney Bernard A. Pishko also had asked Herring for an opinion. The City Council in Norfolk this week passed a resolution stating its desire to move a Confederate monument from downtown into a cemetery where rebels are buried.

Pishko wrote in an Aug. 18 opinion to the attorney general: "It is my opinion that neither the 'civil' nor the 'criminal' statute prohibits the relocation being considered by Norfolk City Council."

Norfolk also sent Herring a memo from the Norfolk Commonwealth's Attorney's Office that agreed:

"While the General Assembly has imposed certain restrictions on the removal or relocation of Monuments through Code § 15-2-1812 and its predecessor statutes going back to 1904, those restrictions do not appear to apply to most Monuments put up in municipalities prior to 1998.

"For that reason, the removal or relocation of a Monument put up in a municipality, especially if put up by order of a municipal governing body or a private entity with the permission of that governing body, would not implicate Code § 18.2-137 [the statute imposing criminal penalties for removal, etc. of war monuments]."

A Circuit Court judge in Danville also has ruled that state law is not retroactive prior to 1998. However, there is a pending lawsuit in Charlottesville Circuit Court over that issue. A Charlottesville judge has stopped the city from removing its Robert E. Lee statute while the case is pending.

pwilson@timesdispatch.com (804) 649-6061

Twitter: @patrickmwilson

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Attorney General William Tong Okays Captive Audience Bill; May Face Court Challenge if Passed

LABOR (HTTPS:// YANKEEINSTITUTE .ORG/CATEGORY/ LABOR)

M A RC E. FIT CH      M AY 20 , 2 01 9

William Tong Speaking at C T AF L-C IO Event

Connec ticut Att orney General W illiam Tong on Friday broke with former Attorney General George Jepsen and issued a sho rt, three- page opinion

(https://portal.ct.gov/- /media/AG/Opinions/2019/2019-03 Sen Fasano.pd£) stating

St at e Po ic e Co n t r act Exe m p t s

 Pe r so n n e Rec o rd s, Gr ie v an c e

 Hearings From Pubic Disc osu re

( h t t p s://y a n keeinst it u t e.o rg / 2019 / 0 5/ 17/ st po ic e - co n t r ac t - e xe m p t s- p e rs o n n e -

re co rd s-g ri eva nce-hea rings-from- pub ic-disc osu re/ )

MAY 17, 2019

Inthewake to two controversial police shootings in Connecticut, the latest Connecticut State Police contract exempts officers' personnel records and grievance hearings from public

READ MORE

( HTTPS: / / YA N K E E NST TUTE.ORC/2019/05/1 POL CE-CONTRACT-EXEMPTS-

PERSON NEL - R E CO R D S - C R ! EVA NC E-

H EARi NCS-FROM-PUBLIC-DISCLOSURE/)

one of Democratic lawmakers' latest captive audience bills would not be preempted by national labor law.

Former Attorney General Jepsen issued a formal opinion in 2018

(https://yankeeinstitute.org/2018/04/26/attorney-general-jepsen-connecticut­ captive-audience-bill-violates-national-labor-relations-act/) that Democrats' captive

Pubic Option Heath nsurance Bi Draws Rebuke from Insurance Companies; Raises Questions on Costs, Lega Liabi ities

audience legislation would be preempted by the National Labor Relations Act, effectively

(h t t p s:/ /y a n keeinstitute.o rg / 2019 /0 5/15/ p L

killing the bill that year.

Tong concurred with Jepsen on one of the bills, saying Senate Bill 64 - An Act Concerning Captive Audience Meetings - would be preempted by the NLRA but said a second bill from the Senate - Senate Bill 440 - is "materially different from the proposed legislation that was the subject of the 2018 O pinion."

"As a generally applicable state law aimed at protecting the constitutional rights of all Connecticut employees, the law, if enacted, can be fairly defended as outside the scope of NLRA preemptions as articulated by the courts," Tong wrote

The opinion was issued to Senate Republican Leader Len Fasano, R-North Haven, who had requested Jepsen's opinion in 2018.

The bill would prevent employers from holding mandatory meetings with employees regarding "religious or political matters," but labor unions have pushed hard for the legislation to prevent employers from holding meetings with

employees to discourage them from

option-heath-insurance-bi -draws- rebuke-f rom-insuranee-companies- raises-questions-on-costs-lega1-

  ia bi ities/)

MAY 15, 2019

A proposal to create a public health plan for small employers has some lawmakers and business associations wondering why the state of Connecticut is trying to compete against the state's

READ MORE

( HTTPS://YANKEE NST TUTE.ORG/2019/05/1 OPT ON-HEALTH- NSURANCE-B LL­ DRAWS-REBUKE-FROM- NSURANCE­

COMPAN IES-RAISES-QU ESTI ONS-ON­ COSTS-LEGAL-LIAB I LITI ES/)

orgamzmg.

Attorney General William Tong

If passed, an employee could 6le suit against an employer if they refuse to attend a mandatory meeting regarding politics or religion, including unionization efforts.

Certain exceptions are made if an employer is required by law to communicate government information to their employees and for religious institutions to be able to communicate religious issues to employees.

Tong, who rode to campaign victory on  a wave of union support and  advocated  for captive audience legislation in the past, wrote that because the legislation amends and clarifies existing state statute regarding freedom of speech for employees, it will fall outside the framework of the NLRA.

Similar proposed bills in the past - and the bills this year - have been opposed strongly by the Connecticut Hospital Association and the Connecticut Business and Industry Association, who say it limits employers' free speech and would be preempted by federal labor law .

According to a former chairman of the National Labor Relations Board, the SB 440 would be "invalid and unenforceable" (https://yankeeinstitute.org/2019/04/05/former­ national-labor-relations-board-chairman-captive-audience-bill-invalid-and­ unenforceable/) because it would still be preempted by the federal government and possibly violate the free speech rights of employers.

In a letter issued to CBIA President Joseph Brennan, Philip Miscimarra, who served as chairman of the NLRB for four years, wrote "Based on my evaluation of Senate Bill 440, I believe the legislation directly conflicts with the NLRA, and - if Senate Bill 440 were enacted - I believe the legislation would likely be declared invalid and unenforceable because it is preempted by the NLRA, and the legislation may also be deemed an unconstitutional restriction on free speech and the free exercise of religion under the First Amendment."

Law professor and Yankee Institute Director of Public Policy and Research Scott

Shepard agrees: "The courts have given every indication - and clear and recent indications

- that they will find this law pre-empted by the NLRA, and we expect that litigation will follow soon on any possible passage of S.B. 440 to establish that point."

Tong allowed that the state will likely face a lawsuit if the legislation is passed, but that "enacted legislation carries with it a strong presumption of constitutionality."

"This is not to say that the question is free from doubt. We acknowledge that SB 440 could face a preemption challenge in the courts," Tong wrote. "We conclude that it is defensible, and if enacted, this Office stands ready to defend it."

Marc E. Fitch

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D fi'NEWS https://www.ourmidland.com/news/article/Nessel-Civil-rights-panel-not-bound-by-ex-AG-s-140153.p1h8p

Nessel: Civil rights panel not bound by ex-AG's LGBT opinion

David Eggert, Associated Press Updated 10:34 pm EDT, Tuesday, June 18, 2019

In this June 4, 2019, photo, Dana Nessel, Attorney General of Michigan, listens to a question from reporters in Detroit.  Hundreds of boxes. Millions of records. From Texas to Michigan this month, attorneys  general  are  sifting through  "secret"  files, nondisclosure  agreements between the church and families, heart wrenching letters from parents begging for action, priests'  own psychiatric  evaluations. They're  looking to prosecute, and not just priests.

LANSING, Mich. (AP) - The Michigan Civil Rights Commission is not bound by a 2018 state opinion that says LGBT people have no protection under an anti-discrimination law, Attorney General Dana Nessel's office said Tuesday, citing the U.S. Supreme Court's pending consideration of whether sex-based discrimination covers sexual orientation and gender identity.

The Democratic attorney general's guidance came after her predecessor, Republican Bill Schuette, last year issued an opinion stating that Michigan law does not ban LGBT discrimination and that it would be up to legislators to change the statute to include such protections.

ing on state agencies unless reversed by a court. But Nessel's chief legal counsel Suzanne Sonneborn told the commission

- - • - ■ • · · ::, · · - - - - - - ·

Nessel declined to issue a new opinion, though, pointing to the office's longstanding policy of not doing so on issues subject to pending litigation.

In April, the Supreme Court said it would hear cases involving people who claim they were fired because of their sexual orientation and another - out of Michigan - that involves a funeral home employee who was fired after disclosing that she was transitioning from male to female and would begin dressing as a woman. The cases will be argued in the fall.

Nessel said she will file a brief supporting the position that Title VII of the federal civil rights act prohibits discrimination based on sexual orientation and gender identity.

"I urge the commission to continue its important mission to investigate allegations of unlawful discrimination and to secure the equal protection of civil rights without such discrimination, and I look forward to working together with the commission in doing so," Nessel said in a written statement.

The guidance from Nessel's office was questioned by Republicans who control the Legislature.

"Under the chief legal counsel's logic, the attorney general's opinions from earlier this year halting construction of the Mackinac Straits tunnel and threatening the integrity of the petition gathering process no longer bind state agencies because the underlying questions are the subject of pending litigation," House Speaker Lee Chatfield said in a statement. "I look forward to seeing how this new policy change plays out, and hopefully Michigan families will get the reforms they were promised and that they deserve."

When Nessel issued opinions regarding the planned oil pipeline tunnel and the ballot drive changes, however, no lawsuits had yet been filed . They came later.

After Schuette released his opinion last July, the Civil Rights Commission directed an agency to continue investigating complaints of discrimination based on sexual orientation and gender identity - reviews that had begun in May 2018.

Agustin Arbulu, who heads the state's Department of Civil Rights, welcomed Nessel's decision Tuesday.

"The uncertainty caused by the legal situation surrounding this important matter of equality points once again to the need for the Legislature to amend Elliott-Larsen to assure all individuals in Michigan are protected from discrimination," he said in a statement.